JUDGMENT Dharam Chand Chaudhary, J —The appellant Hem Raj has been convicted and sentenced for the commission of offence punishable under Sections 20 & 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the "Act" in short) with the allegation that on 05.05.2004, at 07.00 p.m., when his search conducted in Aut Bazar, charas weighing 100 gram and brown sugar (heroin) weighing15 gram, were recovered from him. Consequently, he has been sentenced to undergo rigorous imprisonment for a period of two years with Rs. 20, 000/- as fine under Section 21 and to undergo rigorous imprisonment for three month with Rs.2, 000/- as fine under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. 2. Aggrieved by the findings of conviction recorded against him, the appellant-convict has assailed the same on the grounds, inter-alia, that learned trial Court has failed to appreciate the facts of the case and also the law applicable in its right perspective and as a result thereof, wrong findings came to be recorded against him. Since, independent witness Nande Ram (PW-1) has not supported the prosecution case and rather was declared hostile, therefore, the testimonies of the official witnesses Constable Dhan Dev (PW-2) and LHC Narpat Ram (PW-8) , were neither plausible nor sufficient to record the findings of conviction against the accused. The Investigating Officer PW-10 Ram Lal, who allegedly conducted the search of the accused-convict, failed to give one search first. Nothing is there in the testimonies of PW-1 Nande Ram, PW-2 Dhan Dev and PW-8 Narpat Ram that the samples were drawn after mixing the contraband allegedly charas and brown sugar properly. The testimonies of the officials witnesses, being contradictory in nature and also inconsistent too, erroneously relied upon. 3. Convict Hem Raj is resident of Aut itself. The Police Station is also situated in Aut Bazar. As per the prosecution story, on 05.05.2004, around 07.00 p.m., PW-10 HC Ram Lal was patrolling in Aut Bazar. PW-2 Constable Dhan Dev and PW-8 LHC Narpat Ram, were also with him. The police party noticed the accused coming from Bazar side holding a polythene bag in his hand. On seeing the police, he tried to flee away, however, nabbed by PW-10 HC Ram Lal and then on inquiry, he disclosed his name as Hem Raj and other antecedents. PW-2 Constable Dhan Dev and PW-8 LHC Narpat Ram, were also with him. The police party noticed the accused coming from Bazar side holding a polythene bag in his hand. On seeing the police, he tried to flee away, however, nabbed by PW-10 HC Ram Lal and then on inquiry, he disclosed his name as Hem Raj and other antecedents. On formal search of the polythene bag in his hand, in presence of PW-1 Nande Ram and PW-8 Narpat Ram, packs of 20 gram, 10 gram, 2 gram and 1 gram, were found kept in a box. In another polythene bag inside the polythene bag in the hand of accused, charas in the shape of sticks alongwith brown sugar, in three small packs, was found kept. The brown sugar in each small pack when weighed was found 5 gram in each pack, i.e. 15 gram in all. The three parcel packs were marked as A-1, A-2 and A-3. The packs, i.e. A-1 and A-2, were sample parcels of brown sugar, whereas the third parcel (A-3) was containing remaining 5 gram brown sugar. The recovered charas was also weighed and found 100 gram, out of which, two samples of 25 gram each were separated for the purpose of samples and sealed in two parcels marked as A-3 and A-4. The remaining charas was sealed in another parcel marked as A-5. The sample of seal''T'' Ex.PC was obtained on a piece of cloth and the seal after its use handed over to PW-1 Nande Ram. PW-10 HC Ram Lal, the Investigating Officer, has also filled up the relevant columns of NCB form in triplicate and put seal ''T'' on this document also. The charas and brown sugar recovered from the accused were taken into possession vide recovery memo Ex.PA in the presence of PW-1 Nande Ram and PW-8 Narpat Ram. For registration of the case, he prepared Ruka Ex.PL, on the basis of which, FIR Ex.PK was registered by SI/SHO PW-7 Dabe Ram. The accused was arrested and before that the grounds of his arrest were disclosed to him vide Ex.PD. His nephew Bharat Kumar was informed about his arrest. The site plan Ex.PQ was prepared on the spot and the statements of the witnesses were also recorded there. The accused alongwith case property was produced by PW-10 HC Ram Lal before SI/SHO PW-7 Dabe Ram. His nephew Bharat Kumar was informed about his arrest. The site plan Ex.PQ was prepared on the spot and the statements of the witnesses were also recorded there. The accused alongwith case property was produced by PW-10 HC Ram Lal before SI/SHO PW-7 Dabe Ram. PW-7 Dabe Ram has resealed all the parcels A-1 to A-5 with seal ''K'' and obtained sample of seal Ex.PM on a piece of cloth. The seal was also embossed on the NCB form Ex.PN. The case property, thereafter, was deposited along with documents and specimen seals ''K'' & ''T'' with MHC Raj Kumar (PW-3) , Police Station, Aut, for safe custody in the Malkhana. PW-3 MHC Raj Kumar entered the case property in the Malkhana Register vide entries Ex.PE. On 11.05.2004, he handed over the parcel of brown sugar mark A-1 and one sample parcel of charas mark A-3, alongwith documents and sample of seal, to Constable Baldev Singh (PW-4) vide R.C. Nos.26/04 and 27/04, with a direction to deposit the same with CFSL, Chandigarh and CTL Kandaghat, respectively. PW-4 Constable Baldev Singh accordingly deposited the case property as directed and produced the receipts of RC Ex.PF and Ex.PG before PW-3 MHC Raj Kumar, when he returned to the Police Station. 4. On completion of investigation, the challan was prepared and filed in the trial Court. Learned trial Judge has framed the charge against the convict-accused for the commission of offence punishable under Sections 20 & 21 of the Narcotic Drugs and Psychotropic Substances Act, to which he pleaded not guilty and claimed trial. The prosecution in turn, has examined 10 witnesses in all. The material prosecution witnesses are PW-1 Nande Ram, PW-8 Constable Narpat Ram, PW-2 Constable Dhan Dev, and PW-10 Investigating Officer HC Ram Lal. The remaining witnesses are police officials, hence, formal. 5. The accused in his statement under Section 313 Cr.P.C, has denied the entire prosecution case either being incorrect or for want of knowledge. He has examined his brother Shashi Kumar as DW-1 to substantiate his plea raised in defence that the Investigating Officer HC Ram Lal (PW-10) , on account of his complaint made by DW-1 Shashi Kumar to the Superintendent of Police, Mandi, was inimical to them and that it is for this reason, a false case was registered against the accused. 6. 6. Learned trial Judge on appreciation of oral as well as documentary evidence available on record has concluded that the charge against the accused stands proved beyond all reasonable doubt. He has, therefore, been convicted and sentenced in a manner as pointed out at the outset. 7. Mr. Lakshay Thakur, Advocate, learned defence counsel, during the course of arguments has drawn the attention of this Court to various infirmities and discrepancies in the prosecution evidence. It is also argued that no plausible and cogent evidence to show that the contraband, allegedly charas and brown sugar recovered from the accused, were properly mixed before drawing sample is forthcoming. The Investigating Officer HC Ram Lal (PW-10) has not given his search first to the accused before his search could have been conducted by him. It has also been pointed out that as per the testimony of PW-9 Chandermani, on 06.05.2004, the case property was not received in CTL Kandaghat and, therefore, he had retuned the same to PW-3 MHC Raj Kumar. In the absence of any evidence that the case property remained in safe custody during the period 07.05.2004 till 11.05.2004, when it was again sent to CFSL, Chandigarh and CTL Kandaghat through Constable Baldev Singh (PW-4) , the possibility of the same was tampered with during this period cannot be ruled out. According to learned defence counsel, although the accused has abandoned the plea of enmity as no record qua his brother DW-1 Shashi Kumar has made a complaint to Superintendent of Police, Mandi against PW-10 Investigating Officer HC Ram Lal could be traced out, yet, according to him judicial notice of the registration of the case at the instance of DW1 Shashi Kumar against Ashok Kumar and Amar Singh in Police Station, Aut and in that case also the Investigating Officer was HC Ram Lal, may be taken and a conclusion drawn that the accused has been implicated in this case falsely by PW-10, the Investigating Officer HC Ram Lal, on account of his complaint was made by DW-1 Shashi Kumar to Superintendent of Police, Mandi. 8. On the other hand, learned Additional Advocate General, submits that learned trial Judge has appreciated the overwhelming oral as well as documentary evidence in its right perspective and rightly convicted the accused vide judgment under challenge in this appeal. The impugned judgment according to him calls for no interference. 9. 8. On the other hand, learned Additional Advocate General, submits that learned trial Judge has appreciated the overwhelming oral as well as documentary evidence in its right perspective and rightly convicted the accused vide judgment under challenge in this appeal. The impugned judgment according to him calls for no interference. 9. Analyzing the rival submissions and going through the evidence available on record, the failure on the part of the prosecution to explain as to in whose custody the case property remained during the period 07.05.2004 to 11.05.2004, when retuned by PW-9 Chandermani to PW-3 MHC Raj Kumar and handed over again to PW-4 Baldev Singh to deposit the same in CFSL, Chandigarh and CTL, Kandaghat, is a glaring discrepancy in the prosecution case. Mr. Chandermani while in the witness box as PW-9, is specific in stating that on 06.05.2004, the sample parcels were handed over to him vide R.C. No.25/04 with a direction to deposit the same with CTL, Kandaghat. Accordingly, he went to Kandaghat, however, parcels were returned to him by officials on duty for the reason that there was no provision for testing of smack in that laboratory. Thereafter, on 07.05.2004, when he returned to Police Station, he handed over the case property to PW-3 MHC Raj Kumar. Nothing has come in his statement that the case property was handed over by him on 06.05.2004 to PW-9 Constable Chandermani for depositing the same in CTL, Kandaghat. He has also not said anything that the case property was returned to him by PW-9 Chandermani on 07.05.2004. 10. It can reasonably be believed that the case property was handed over to Chandermani on 06.05.2004 because in the cases registered under the Narcotic Drugs and Psychotropic Substances Act, there is practice of forwarding the case property to Forensic Science Laboratory at the earliest, i.e. on the very next day of the recovery. It has happened in this case also because the case property was handed over to PW-9 Chandermani on the very next day, i.e. 06.05.2004. Neither the R.C. is on record nor is there anything in the prosecution evidence that case property was handed over to PW-9 Chandermani for carrying the same to CTL, Kandaghat. The record should have been there because it is for this reason PW-9 Chandermani was examined. Neither the R.C. is on record nor is there anything in the prosecution evidence that case property was handed over to PW-9 Chandermani for carrying the same to CTL, Kandaghat. The record should have been there because it is for this reason PW-9 Chandermani was examined. Such record, i.e. R.C. etc., seems to be removed from the record of this case and also withheld from the Court to avoid to explain as to where the case property remained during the period 07.05.2004 to 11.05.2004. This has rendered the prosecution story highly doubtful. Therefore, this Court is in agreement with learned defence counsel that in view of such glaring discrepancy on record, the findings of conviction could have not been recorded. 11. Again there is nothing in the testimonies of PW-1 Nande Ram, PW-2 Dhan Dev and PW-8 Narpat Ram that the contraband, allegedly charas and brown sugar recovered from the accused, were properly mixed before drawing samples. Nothing to this effect is there in the Ruka Ex.PL and search and seizure memo Ex.PB and for that matter even in special report and endorsements, Ex.PH, PH1& PH2. Therefore, the story of mixing the same properly seems to be engineered by the Investigating Officer PW10 HC Ram Lal for the first time while in the witness box. In the absence of the evidence qua mixing of contraband to make it homogeneous before the samples could have been drawn, also renders the prosecution story that it is charas and brown sugar alone which were recovered from the accused highly doubtful. 12. The present being a case of recovery of charas weighing 100 grams, which is in small quantity, whereas brown sugar weighing 15 gram, again in small small packs of 5 gram each, the possibility of planting the same upon the accused, that too when the Investigating Officer was not obliged to offer his search first to the accused before conducting the search, cannot be ruled out. As a matter of fact, the Investigating Officer should have given his own search first before the search of the accused could have been conducted. Admittedly, he never offered his search to the accused, therefore, on this score also, the search and seizure in the manner as claimed by the prosecution, suffers from infirmity besides being a glaring discrepancy in the prosecution case. 13. Admittedly, he never offered his search to the accused, therefore, on this score also, the search and seizure in the manner as claimed by the prosecution, suffers from infirmity besides being a glaring discrepancy in the prosecution case. 13. Now, coming to the last submission that the Investigating Officer was inimical to the accused, the plea raised by the accused in his defence and also the testimony of DW-1 Shashi Kumar, a FIR was registered at the instance of DW-1 Shashi Kumar, none-else, but the real brother of the accused against one Ashok Kumar and Amar Singh. That case was also investigated by the same Investigating Officer who is PW-10 HC Ram Lal in this case. On direction of this Court, learned Additional Advocate General has produced the record of that case, i.e. FIR No.143/2002, dated 28.12.2002, under Sections 147, 149, 427 & 506 IPC, registered at the instance of DW-1 Shashi Kumar against Amar Singh, Ashok Kumar, Kala Devi, Kuldeep Singh, Bhima Devi and Parwati Devi, in Police Station, Aut. This case was investigated by PW-10 HC Ram Lal, the Investigating Officer. Although, nothing is there on record that DW-1 Shashi Kumar has made a complaint against PW-10 HC Ram Lal to the Superintendent of Police, Mandi with the allegations that he failed to investigate that case in a fair and impartial manner, yet, judicial note of registration of such case at the instance of DW-1 Shashi Kumar, the real brother of accused, can be taken as such record may not be available in the police file, but in the given facts and circumstances, the possibility of making of such complaint in the office of Superintendent of Police, cannot be ruled out. Therefore, irrespective of learned defence counsel, has abandoned this plea for want of the record during the course of arguments, an adverse inference has to be taken against the prosecution and the possibility of implicating the accused by PW-10 HC Ram Lal falsely, cannot be ruled out. 14. Now, coming to the recovery of the contraband allegedly charas and brown sugar from the possession of convictappellant Hem Raj two possible views emerge on record because PW-1 Nande Ram has not supported the prosecution case in this regard. 14. Now, coming to the recovery of the contraband allegedly charas and brown sugar from the possession of convictappellant Hem Raj two possible views emerge on record because PW-1 Nande Ram has not supported the prosecution case in this regard. The official witness PW-8 Narpat Ram and for that matter the Investigating Officer PW-10 HC Ram Lal, no doubt, have stated in one voice that the charas and brown sugar were recovered from the accused, however, in view of the contradictory evidence, as has come on record by way of testimony of independent witness and the official witnesses, two possible view emerge on record and in a case of this nature, the benefit of doubt must go to the accused and as such, it is not possible to record the findings of conviction against him with such type of evidence available on record. 15. In view of what has stated hereinabove, learned trial Judge has not appreciated the evidence available on record in its right perspective and to the contrary swayed with the alleged recovery of the contraband, i.e. charas and brown sugar, from the accused, has recorded the findings of conviction erroneously. The present, as a matter of fact, is a case where the prosecution has failed to prove its case against the accused beyond all reasonable doubt. 16. For all the reasons stated hereinabove, this appeal succeeds and the same is accordingly allowed. Consequently, the impugned judgment is quashed and set aside and the convictappellant is acquitted of the charge framed against him under Sections 20 & 21 of the Narcotic Drugs and Psychotropic Substances Act. Since, he is on bail, therefore, the personal bond he executed is cancelled and the surety discharged. The amount of fine, if deposited, shall be refunded to him under proper receipt. The appeal is accordingly disposed of, so also the pending application(s) , if any.